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September 13, 2008

Federal defenders provide (lengthy) suggestions to USSC

As detailed in this agenda, it appears that the US Sentencing Commission will vote on its priorities for the coming amendment season this coming Thursday. But I cannot help but wonder if this timeline gives member of the USSC enough time to take in the federal defenders' long letter of suggested priorities for the Commission. This letter runs 70 pages, and here is an early paragraph that sets forth some of the defenders' views and themes:

The new advisory system is a healthy one. Sentencing is more transparent, sentences are more fair and effective, and the Commission receives the robust feedback it needs to revise the guidelines. The advisory system also tends to expose even more clearly the flaws of mandatory minimum penalties. To the extent it has introduced greater uncertainty, as the Department of Justice notes with some disappointment in its letter of August 26, 2008, it is true that the parties are no longer precluded from demonstrating, or the courts from finding, that the guideline sentence is greater than necessary, or insufficient, to satisfy legitimate sentencing purposes. While this has undoubtedly lessened prosecutorial power over sentencing, the Defenders, as well as most neutral observers, believe that the new system is an obvious improvement. And while the Commission may be concerned that the rate of within-guideline sentences has decreased somewhat and may be uncomfortable with the increased criticism of some of the guidelines (many of which the Commission itself has found to be excessive and to create unwarranted disparities), it seems apparent that the way to reduce the rate of below-guideline sentences and to ensure the Commission's ongoing role in guiding federal sentencing policy is to revise the guidelines in response to feedback from the courts, data and research, that is, to provide advice that makes sense and that the courts want to follow.